Introduction[1]
The draft legal aid bill is a creditable attempt at establishing a platform for the improvement of poor people’s access to justice in Sierra Leone. On the one hand, it is a fulfilment of pledges made by the government in the Justice Sector Reform Strategy and Investment Plan 2008-2010 and complies with the Government’s human rights obligations; on the other hand it is clear, practical and achievable. The bill is an effort to create a public/private partnership between government and civil society in the provision of justice services in Sierra Leone. The following are highlights of several aspects of the draft bill that are particularly relevant to civil society organisations providing justice services.
Purpose of the draft legal aid bill 2010
The draft bill aims to provide accessible, affordable, credible and sustainable legal aid services to indigent persons.
Establishment of the legal aid board and civil society representation
- The bill establishes a new legal aid board to manage and regulate provision of legal aid. (s.2)
- Two out of 8 board members will be civil society representatives, one of which must be from a rural area. (s.4)
- Board will decide what types of cases can be eligible for legal aid – and this could also include civil cases. (s.11)
- Legal aid board shall disseminate information regarding the national legal aid scheme. (s.12)
Definition of accredited paralegals and others providing legal aid services
The bill sets out a number of definitions:
- “Accredited paralegal” means a person employed by the Board, a government department, accredited civil society organisation or an accredited non-governmental organisation who has completed a training course approved by the Board or a training course conducted by a university in Sierra Leone, an accredited civil society organisation or accredited non-governmental organisation and who provides free legal advice and assistance and legal awareness education under the general supervision of a legal practitioner but is not licensed to practice as a legal practitioner.
- “Legal assistant” means a law graduate or legal executive who has completed a training course in practical legal skills in an institution recognised by the Board.
- “Legal aid officer” means a person designated by the Board to provide legal advice and assistance at a magistrate’s court where there is no public defender’s office, legal aid practitioner, accredited civil society organisation, accredited non-governmental organisation or university law clinic.
- “Legal practitioner” means any person admitted and enrolled to practice law as a barrister and solicitor in terms of the Legal Practitioners Act, 2000.
- “Legal aid provider” means a person employed to provide legal advice and assistance or legal representation in a public defender office, a legal practitioner in private practice accredited by the Board, or a person employed by an accredited civil society organization or an accredited university law clinic to provide legal aid advice and assistance or legal aid representation.
- “Accredited non-governmental organization” means a non-governmental organisation that has entered into a cooperation agreement with the Legal Aid Board and has been accredited by the Board.
What paralegals and legal assistants can do?
Paralegals and legal assistants (as well as law students and pupils) can provide “legal advice and assistance” which means in respect of both criminal and civil cases:
- providing information about the relevant law and legal processes;
- assistance with alternative dispute resolution;
- advice on legal issues;
- assistance with the drafting of documents other than instruments prohibited in terms of section 24 of the Legal Practitioners Act, 2000;
- referring cases to legal practitioners;
- doing such other things that do not constitute legal representation. (s.1)
Specifically in relation to criminal cases they can also assist at police stations, prisons and courts by:
- providing defendants with information on rights and procedures;
- facilitating the tracing of sureties for bail;
- facilitating the tracing of parents or guardians of juveniles;
- by notifying witnesses of upcoming trial dates;
- assisting in any other way to ensure that accused persons receive a fair trial. (s.33)
What legal aid officers can do?
In minor civil or criminal cases, legal aid officers may contact legal aid providers who have established mechanisms for referring such cases to relevant customary or other informal dispute resolution bodies. (s.35)
What is the cost of legal aid services?
Legal aid is free. Legal aid officers/ organisations cannot charge fees for their services. It will be a criminal offence to demand payment for legal aid services (s.35)
What if there is no legal practitioner present in court?
Where there are no legal practitioners available, the court may allow a lay adviser to assist an accused or civil litigant, free of charge (s.37).
Role of civil society organisations within the draft bill
Civil society organisations and law clinics can provide free legal advice and assistance and if they are accredited by the legal aid board, by entering into a cooperation agreement with the board to be a legal aid provider, can provide it on behalf of the board (s.34). If the accredited provider fails to fulfil contractual and reporting requirements, the legal aid board may terminate the cooperation agreement with 3 months’ notice. Then they may no longer advertise themselves as an accredited legal aid provider (s.50). The board will maintain a register of accredited CSOs who may be called upon to provide legal aid advice and assistance in the provinces (s.36).
Accredited civil society organisations or law clinics may provide legal aid representation through legal practitioners and if they provide such legal aid representation from funds not supplied by the board, the organisations themselves determine the eligibility rules (s.34).
Who is eligible for legal aid?
A poor person who is accused of a crime, arrested or detained has a right to legal advice and assistance, where ‘the interest of justice’ so requires. For representation by a legal practitioner, the legal aid board would have to approve. Legal representation will run from the moment of arrest until the matter is finally determined. A legally aided person who wishes to appeal will have to reapply to the board for legal representation in respect of the appeal (s.30). Similarly, an indigent person who wishes to bring or defend a civil action has a right to legal advice and assistance but has to apply to the board for legal representation. Again, a new application must be made for legal representation in respect of appeals.
The draft bill defines ‘the interest of justice’ to include situations where the indigent person is unable to understand court proceedings or present his case or where such person is a child, juvenile, woman, refugee, internally displaced person or mentally or physically disabled (s.23).
A nationwide approach
The draft bill also states that there should be at least one legal assistant or paralegal appointed by the board in a neutral office in every chiefdom in the vicinity of the relevant chief’s office to provide legal advice and assistance to such chief, his officials and the inhabitants of the chiefdom as well as public legal education and where appropriate divert serious cases to the formal justice system. The board may enter into cooperation agreement with CSOs operating in the chiefdoms to carry out these activities (s.36).
Implications for lawyers
The bill requires mandatory pro bono work by all lawyers every year.
General impressions of the bill
- the provision for a mixed model increases the chances of success of the legal aid scheme
- public/private partnership shares responsibility for justice service provision between government and civil society
- it is important that the bill covers both criminal and civil cases, as many of the most pressing justice needs in Sierra Leone are civil.
- the board is reasonably independent
- good definitions and clarification of roles
- accreditation makes access to public institutions easier.
[1] This article was first published in the 42 Edition of The Monitor in March 2010. Since then, the Bill has been revised and some provisions have been changed. The current edition includes the changes that have been made.
